Our Clinic experts provide a guide to those thorny issues that can trip up the
unwary. This week: problems with the Energy Performance Certificate (EPC).

Q I bought a newly converted Victorian maisonette last year. The Energy Performance Certificate (EPC) shows an Energy Efficiency Rating of 80 and an estimated annual fuel cost for heating and hot water of £421. My gas bill for our first six months there was an eye-watering £1,350. There is a large, draughty roof light above the stairs, which I have discovered is a type designed for schools, hospitals and warehouses, not homes. The developer will not change it because it met building regulations when plans were submitted. The EPC states that it has been provided for comparative purposes only. Do I have any legal recourse against either the developer or the company that provided it?

David Fleming writes

A I think it extremely unlikely you would be able to sue the developer. Its obligations are set out in the contract and I would not expect it to have given any promise (“warranty” to use the legal jargon) that the maisonette met any particular energy efficiency standard. As with other property defects, the normal rule is “buyer beware”.

It is a much more interesting question whether you would be able to bring a claim for negligence against the company that provided the EPC. When HIPs were first proposed, the intention was that the seller would have to commission a survey report in just the same way he now has to have an EPC. One of the reasons this was dropped was the difficulty of a buyer suing a surveyor with whom he had no contractual relations. The same problem applies to EPC companies. I have looked at some of their standard terms and conditions and invariably these have some form of exclusion or restriction of liability to the seller who commissioned the report, even though the buyer might be relying on it.

In principle, however, such liability may arise. In a case in the Sixties the courts decided that a bank was at least potentially liable to a third party for giving a negligent reference on its own customer. The same principle may apply here. I suspect we will have to wait until EPCs have been around a little longer before cases start reaching the courts.

However, even if liability could be made out, the damages might not be very great. In cases of professional negligence, they are usually based on the difference between what the buyer paid for thepropertyand what it was actually worth given the “defect”.

I suspect it would be difficult to establish that the flat was worth much less than you paid for it because of the energy efficiency problem. Quite frankly, rather than engage in speculative litigation, it would probably be cheaper to install a new and more energy-efficientroof light.

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